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Whistle-Blower Rule Changes Follow Record Cases in 2012

The Occupational Safety and Health Administration (OSHA) has proposed several procedural rules scheduled to take effect in 2013 covering the filing of whistle-blower complaints under eight of the whistle-blower statutes enforced by the agency.

This comes after a record number of whistle-blower cases were filed and resolved by OSHA in fiscal year (FY) 2012.

Rules in the Pipeline

The procedural rule changes scheduled for 2013 are intended to provide specific time frames and guidelines regarding:

The filing of complaints with OSHA.

The agency’s issuance of a finding.

Appeals.

Remedies.

The rules include a provision allowing the complainant to file the complaint in district court within 90 days after receiving a written determination from OSHA, or if the secretary of labor has not issued a final determination within 210 days after the filing of the complaint.

The statutes covered include employees working for railroad carriers, public transportation agencies, commercial motor carriers, seamen, employees in the consumer financial product and service industries, the health care industry, and engaged in manufacturing, processing, packing, transporting, distribution, reception, holding, or importation of food.

OSHA is also seeking public comments on a proposal for a new online whistle-blower complaint form. The proposed form would allow workers to electronically submit whistle-blower complaints directly to OSHA. The draft form is published in the Jan. 17, 2013, Federal Register, along with instructions on how to comment.

Comments are due by March 18, 2013.

“The proposed form will provide workers with greater flexibility for meeting statutory filing deadlines,” said David Michaels, assistant secretary of labor for occupational safety and health.

“I shudder to think of how many complaints we’d receive if more people knew their rights and had more time to file their grievance,” Michaels said at a recent public meeting.

OSHA Holds Inaugural Whistle-Blower Committee Meeting

Highlighting its continued emphasis on protecting the rights of whistle-blowers, OSHA hosted the inaugural meeting of the Whistleblower Protection Advisory Committee on Jan. 29, 2013. Michaels stressed the importance of whistle-blowers to the economy, worker safety, the environment and the integrity of the financial system. He also updated the committee on the recent whistle-blower accord signed between OSHA and BNSF Railway Co. “We see the BNSF settlement as a model for other employers to follow,” he said.

Beth Slavet, the agency’s pick to head the new Whistleblower Protection Programs Directorate, ran through several agency whistle-blower accomplishments in 2012, including decreasing the backlog of complaints, training field investigators, publishing a guidance on safety incentives, publishing an updated whistle-blower investigations manual, hiring 35 new full-time employees and piloting an alternative dispute resolution program, which has been extended 120 days past the Jan. 29, 2013, end date because of inconclusive findings.

Gregory Keating, chair of Littler Mendelson’s Whistleblowing and Retaliation Practice Group and management representative on the committee, spoke for employers who he said “have a desire and willingness to embrace an ethical landscape but are yearning for tools and concrete guidance to help them.”

Speaking to SHRM Online, Keating echoed Michaels’ statement at the meeting in which he indicated that he would like to effect a change in culture among employers across the country.

“My own personal view is that employers should carefully consider implementation of a host of new tools, from training to integrated compliance solutions to incident management systems, which will assist them in effectuating this kind of change in culture,” Keating said.

OSH Act Whistle-Blower Statute Outdated

The whistle-blower law enforced by OSHA that brings in the most cases by far needs to be updated, Michaels and others at the committee meeting declared.

Under the Occupational Safety and Health Act’s Section 11(c), an employer cannot discriminate against a worker who reports a safety problem. Section 11(c) complaints are the most common claims investigated by OSHA. Of the 2,787 whistle-blower complaints brought in FY 2012, Section 11(c) cases accounted for 1,706.

Michaels pointed to Section 11(c)’s requirement that a worker must file a complaint with OSHA within 30 days of the alleged discriminatory action, while many other whistle-blower laws have far longer filing periods. In FY 2012, OSHA dismissed 310 Section 11(c) retaliation complaints because they were filed after 30 days, according to agency figures.

“This is a poorly written statute, and we are looking at amending it,” he said.

Several speakers suggested that the panel consider bringing Section 11(c) in line with the 19 other whistle-blower laws that direct OSHA to pursue legal actions through administrative courts if no settlement is reached, or allow workers to pursue complaints on their own in federal court or through administrative hearings. Section 11(c) currently does not allow workers to pursue complaints on their own.

Michaels also suggested the committee look at whether Section 11(c) should include a requirement for employers to establish in-house compliance committees to monitor how whistle-blower laws are followed, a provision included in the Sarbanes-Oxley Act’s language for whistle-blowers reporting fraud.

Dramatic Increase in Whistle-Blower Cases Filed, Resolved

Recently released OSHA statistics reveal increases in both the number of whistle-blower cases filed with OSHA in fiscal 2012 and the number of OSHA determinations. The number of whistle-blower cases submitted to OSHA was 2,787 (up 5 percent from 2011), and the number of complaint determinations from new cases and from the OSHA backlog was 2,867 (up a whopping 42 percent).

However, only 21 percent (592) of the determinations produced settlements that OSHA officials approved or reviewed, and just 2 percent (45) resulted in a finding or preliminary order.

The remaining complaints were either withdrawn by complainants (564) or dismissed by OSHA (1,665).

“The number of OSHA whistle-blower cases keeps going one way—up,” said Mike Billok, a labor and employment law attorney at Bond, Schoeneck & King, based in Albany, N.Y.

The reason for this? “I can sum it up in one word—outreach. OSHA wants to educate and inform as many employees as possible that they can contact the agency if they feel they have been disciplined or terminated due to raising an OSHA-related issue, making a complaint to OSHA, or cooperating with an OSHA investigation,” he told SHRM Online. Not only does OSHA have a comprehensive how-to guide for employees on its website, but it also issues a press release almost every time the agency is involved in OSHA whistle-blower-related activity. “This results in more employees becoming aware of their ability to make complaints to OSHA,” he said.